D E C I S I O N

MENDOZA, J.:

This is a complaint for Grave Misconduct filed by Judge Rowena Nieves A. Tan (Judge Tan) against respondent Ernesto Quitorio (Quitorio), then the Legal Researcher of Branch 2, Regional Trial Court, Borongan, Eastern Samar (RTC Branch 2), for drafting a resolution of a motion to dismiss in a case which was not assigned to him and for informing the favored movant of the submission of the draft to her, with instructions to follow it up with her.

Records show that on January 11, 2008, Judge Tan filed an unsworn letter-complaint[1] requesting for an investigation on Quitorio's alleged misconduct. In the said letter, Judge Tan averred that: she was the Acting Presiding Judge of RTC Branch 2 from March to October 2007; at that time, there was a pending motion to dismiss filed by Angeles Gomez (Gomez), respondent in Civil Case No. 4052, which was an original case for recovery of ownership and annulment of title; on November 21, 2007, upon her return to her original court station in RTC, Branch 42, Balangiga, Eastern Samar, she received a text message from Corazon Dadulla (Dadulla), Gomez's errand girl, which read "Good am! Maam c cora ito. Pwede kmada ha balangiga importante la kan mana angie papakiana. Tanx a lnt." ("Good am! Maam this is Cora. May I go to Balangiga? Mana Angie has something important to ask you. Thanks a lot"); she knew Dadulla to have a pending case in RTC Branch 2 for Large Scale Illegal Recruitment but she did not know where and how Dadulla got her mobile phone number; sensing that Dadulla wanted to see her about Gomez's case, she informed her that she had left RTC Branch 2 and had nothing more to do with the cases there; despite that, Dadulla, as ordered by Gomez, still came to see her on November 27, 2007, regarding the draft resolution of Quitorio granting Gomez's motion to dismiss; Civil Case No. 4052 was never assigned to Quitorio, to whom she only assigned appealed cases; and she had not even read the said draft which she left in RTC Branch 2.

Judge Tan added that she had been previously warned about Quitorio's reputation in RTC Branch 2, so she made it a policy to make the Clerk of Court, Atty. Crisolito Tavera (Atty. Tavera), privy to the cases assigned to Quitorio; the said motion to dismiss had yet to be scheduled for hearing at the time Quitorio drafted the resolution; and on December 3, 2007, she confronted Quitorio in the presence of Executive Judge Elvie P. Lim (Executive Judge) and the RTC Branch 2 staff, and Quitorio insisted that she assigned the case to him for resolution, and he admitted drafting the resolution and informing Gomez that he already submitted it to her.

In its January 18, 2008 Indorsement, the Office of the Court Administrator (OCA) referred the complaint to Quitorio for his comment within ten (10) days from receipt. Quitorio, in his Comment[2] dated March 19, 2008 denied the charges of Judge Tan and claimed that he had been a public servant for over 25 years. He insisted that Judge Tan, knowingly or unknowingly, did assign the case to him as it was one of the records he received to be worked on, and no one called his attention or bothered to take the expediente and case records from him. He drafted the resolution in the honest belief that it had been assigned to him. In August 2007, when he prepared the draft resolution and personally handed it to Judge Tan, she even thanked him for his work. He wondered why Judge Tan only confronted him in December 2007 when he had submitted the draft resolution almost four months earlier.

Quitorio further denied having informed Gomez about the draft resolution. He, however, admitted that he conveyed to Dadulla that he had already submitted the draft resolution to Judge Tan and "it was up for [sic] them to do whatever they desired under the circumstances."[3]

He also advised Dadulla, who was a familiar figure in court being the wife of one of the deputy sheriffs, "to just follow it up with the judge in her sala in Balangiga, Eastern Samar.[4]

He also refuted Judge Tan's assertion that only appealed cases were assigned to him. He claimed that he was also assigned special proceedings cases and an original case, namely, Criminal Case No. 11151, entitled "People v. Tito Ejada," for murder. With respect to the criminal case, Judge Tan even instructed him to draft a decision in favor of the prosecution after her father, Atty. Rufilo Tan, as the private prosecutor in the said case, withdrew his appearance. He declined because he was of the opinion that the records showed no direct evidence of guilt, and he refused to be a part of any corrupt or anomalous activity.

Quitorio also contended that contrary to due process and the confidentiality required of a proper investigation, Judge Tan berated, verbally abused, insulted, and grievously humiliated him in the presence of his officemates and the Executive Judge, and was not afforded the opportunity to explain himself. He only received a copy of the letter- complaint three months later when he was already out of the service, after having applied for his optional retirement in October 2007, which took effect on December 31, 2007.

In her reply[5] to Quitorio's comment, Judge Tan averred that it was not only full of lies but it was also libelous. She countered that the real reason why Quitorio had not been reporting for work was not his optional retirement but his suspension from office for three months without pay and with stern warning after having been found guilty of simple misconduct in an en banc decision of this Court in A.M. No. 06-6-340-RTC.[6] In another administrative case, namely, A.M. No. 06-4-220-RTC,[7] Quitorio was found guilty of simple neglect of duty. He was fined P3,000.00 and warned that a repetition of the same offense would be dealt with more severely.

Judge Tan also contended that when Quitorio admittedly "conveyed" to Dadulla that he "already had handed a draft Resolution in said case to Judge Tan and that it was up for [sic] them to do whatever they desired under the circumstances," he violated Section 1, Canon II of the New Code of Judicial Conduct for Court Personnel regarding confidentiality.[8]

Judge Tan, however, denied any wrongdoing concerning Criminal Case No. 11151. She claimed that while sitting as the Acting Presiding Judge of RTC Branch 2, she deliberately did not decide on the case because her father was the former private prosecutor therein. She only granted her father's Motion to Withdraw with Prayer for Relief, and ordered the case submitted for decision after the defense rested its case. She believed that there was nothing irregular in granting her father's motion.

With regard to this, Judge Tan later manifested that contrary to Quitorio's allegation that the criminal case was dismissible for lack of evidence, the incumbent Presiding Judge of RTC Branch 2, Judge Leandro Catalo, found otherwise and convicted the accused of the crime charged. As attested to by Atty. Tavera, the transcripts of stenographic notes for said case were not even complete at the time her designation as Acting Presiding Judge ended. She, thus, could not have yet assigned the case to Quitorio for research and drafting at that time.[9]

Judge Tan stated that it was not her practice to confront court employees in front of other people, but in Quitorio's case she did so to ensure that their conversation would be witnessed by others because of his propensity for lying and twisting the truth.

In its Report[10] dated May 21, 2008, the Office of the Court Administrator (OCA), confirmed that Quitorio was indeed fined and suspended in two separate administrative cases and verified that he had indeed applied for optional retirement on August 11, 2007 effective December 31, 2007, which application, however, was still under evaluation and processing. Then, OCA made the following recommendations:

(1)

The case be referred to the Executive Judge of RTC, Borongan, Eastern Samar, for Investigation, Report and Recommendation within sixty (60) days from notice and

(2)

The respondent be made to explain why he should not be further charged with dishonesty for the false statement in his Comment that he is no longer in the service.

In its July 7, 2008 Resolution,[11] the Court adopted the OCA recommendations.

In the hearing before the Executive Judge on November 3, 2008, the parties agreed that instead of resetting the hearing, Quitorio would just answer the affidavit-complaint[12] filed by Judge Tan within ten days. The parties were likewise enjoined to submit their respective memoranda/position papers, after which, the case would be deemed submitted for resolution.

In his Explanation[13] dated November 12, 2008, Quitorio explained that there was no malice, falsehood or dishonesty on his part in stating that he was already out of the service. He honestly considered himself out of the service as he was no longer reporting to work pending the effectivity of his optional retirement.

On November 13, 2008, Atty. Wilfredo M. Bolito (Atty. Bolito) entered his appearance as counsel for Quitorio, and moved for the conduct of a formal investigation, which was later denied by the Executive Judge in the Order[14] dated January 7, 2009.

In her position paper,[15] Judge Tan reiterated her contentions and arguments in her complaint.

The Memorandum[16] of Quitorio, on the other hand, reiterated the defenses stated in his Comment, along with additional matters. He insisted that a trial type hearing may not be dispensed with in administrative proceedings. He added that he was not instructed to consult and inform the Clerk of Court regarding the assignment of his cases. Atty. Tavera's affidavits could not be considered best evidence within administrative proceedings, considering that the affiant was available to testify. Furthermore, the affidavits were barren of details as to which specific cases were assigned to him, and did not even state that Civil Case No. 4052 was not assigned to him. He blamed Atty. Tavera for failing in his duty to control and supervise the safekeeping of court records in accordance with Section 7, Rule 136 of the Rules of Court and for failing to account how the records of the case came into his possession.

Quitorio further made the following contentions: that the claim that Civil Case No. 4052 was unripe for resolution was misleading because the motion had already been submitted for resolution by Gomez's counsel after the plaintiff filed her comment; that the statements of Dadulla could not prejudice him because he was not a party to the conversation or privy to the offer of compromise between the parties, in accordance with the rule on res inter alios acta; and that Judge Tan should be considered estopped from questioning his preparation of the draft resolution when she did not question him about any irregularity right after she had received it from him.

He also surmised that Judge Tan filed a case against him out of resentment, for his refusal to draft a decision in favor of the prosecution in Criminal Case No. 11152. In support of his good faith, he pointed out that the draft resolution of the motion to dismiss in Civil Case No. 4052 was adopted by Judge Leandro C. Catalo, the current Presiding Judge of RTC Branch 2.

As regards the charge of Grave Misconduct, Quitorio contended that the elements of corruption, clear intent to violate the law or flagrant disregard of established rule were absent as he acted upon the order of Judge Tan in good faith in accordance with the office's long-practiced procedure. He argued that he never informed Dadulla about the contents of the draft resolution and, therefore, did not divulge any confidential information.

He also insisted that he was innocent of the charges for which he was found guilty by this Court in the two separate administrative cases.

On April 3, 2009, Executive Judge Elvie P. Lim (Judge Lim) submitted her Report and Recommendation.[17] Giving credence to the complaint of Judge Tan, Judge Lim was of the view that Quitorio knowingly drafted a resolution in a case that was not assigned to him, and that he informed Dadulla about the draft in violation of the rule on confidentiality. She opined, however, that the elements of Grave Misconduct were not adequately proven and, thus, recommended that Quitorio be held liable for simple misconduct only with the penalty of suspension for six months without pay.

In a letter[18] dated February 5, 2010, in the interest of justice and for humanitarian considerations due to numerous medical expenses incurred by him and his wife, Quitorio requested for the immediate resolution of the present administrative case, and for the early approval of his retirement application and release of his retirement benefits with a portion to be withheld to answer for any administrative liability.

In its Resolution dated April 7, 2010, the Court referred the Report and Recommendation of Judge Lim and the February 5, 2010 Letter of Quitorio to the OCA.

The OCA in its Memorandum dated October 27, 2010, agreed with Judge Lim that Quitorio is guilty of simple misconduct. Considering that based on the records, Quitorio had been separated from the service effective December 31, 2007, OCA stated that the recommended penalty of suspension could not be adopted. Instead, the OCA recommended the imposition of a fine of P20,000.00 considering Quitorio's past administrative liablities. It was also recommended that Quitorio's retirement benefits be released, subject to the deduction of the fine and the usual clearances.

The charge of Grave Misconduct in this case covers two acts of Quitorio, namely, (1) preparing a draft resolution in a pending case which was not assigned to him, and (2) informing the respondent in said case about the draft resolution and its submission to Judge Tan, with the further advice to follow it up with her.

Misconduct has been defined as "a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer." The misconduct is grave if it involves any of the additional elements of corruption, willful intent to violate the law, or to disregard established rules, all of which must be established by substantial evidence, and must necessarily be manifest in a charge of grave misconduct. Corruption, as an element of grave misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.[19]

In view of the foregoing, the Court finds itself hardly convinced that Quitorio prepared the draft resolution of the motion knowing that the case was not assigned to him. Although both Judge Tan and Atty. Tavera insist that only special proceedings and appealed cases were assigned to Quitorio, the evidence, nonetheless, is nebulous. The affidavits of Atty. Tavera do not categorically state that Civil Case No. 4052 was not assigned to Quitorio. Neither was there a detailed list of cases assigned to him. The affidavits of Atty. Tavera only stated that in accordance with the verbal orders of Judge Tan, he assigned to Quitorio several special proceeding cases and appealed cases from the MTC. Absent any evidence of corruption, this Court is inclined to believe that the case in question was inadvertently assigned to Quitorio, and that he believed in good faith that it was indeed assigned to him for research and drafting. Under the circumstances, this particular act of Quitorio cannot be considered a misconduct, either grave or simple, as it is not violative of any established and definite rule of action.

On the other hand, Quitorio's admission that he informed Dadulla about the submission of his draft resolution with advice to follow it up with Judge Tan in her sala is violative of the confidentiality required of court personnel. Section 1, Canon II of the New Code of Judicial Conduct for Court Personnel,[20] provides:

CANON IICONFIDENTIALITY

SECTION 1. Court personnel shall not disclose to any unauthorized person any confidential information acquired by them while employed in the judiciary, whether such information came from authorized or unauthorized sources.

Confidential information means information not yet made a matter of public record relating to pending cases, as well as information not yet made public concerning the work of any justice or judge relating to pending cases, including notes, drafts, research papers, internal dicussions, internal memoranda, records of internal deliberations and similar papers.

The notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers that a justice or judge uses in preparing a decision, resolution or orders shall remain confidential even after the decision, resolution or order is made public.

It is clear that a court personnel is prohibited from disclosing confidential information to any unauthorized person. Confidential information is any information not yet made a matter of public record relating to pending cases, as well as information not yet made public concerning the work of any judge relating to pending cases, including drafts.

It is of no moment that Quitorio merely disclosed that a draft resolution had been prepared and submitted, but did not specify the contents thereof.

Furthermore, it was highly improper for Quitorio to advise Dadulla to personally follow up the draft resolution with Judge Tan at her sala in Balangiga. Judge Tan could not have taken any action on the case because she was no longer the Acting Presiding Judge at the time.

The conduct of court personnel must not only be, but must also be perceived to be, free from any whiff of impropriety, both with respect to their duties in the judiciary and to their behavior outside the court. Informing a party in a case about the submission of a draft resolution and advising said party to directly communicate with a judge regarding the same constitutes impropriety and puts into question the integrity of the court.

A person charged with grave misconduct may be held liable for simple misconduct if the misconduct does not involve any of the additional elements to qualify the misconduct as grave. Grave misconduct necessarily includes the lesser offense of simple misconduct. Thus, one can be held liable for simple misconduct if any of the elements to make the misconduct grave is not established by substantial evidence. In such case, there is no violation of a person's constitutional right to be informed of the charges against him.[21]

In the case at bench, there is no allegation or evidence presented to show that Quitorio prepared the draft resolution and informed Dadulla of the same for some benefit for himself or for another person. Thus, the element of corruption for grave misconduct is absent. Corruption, as stated earlier, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.[22] Quitorio, therefore, may only be held liable for simple misconduct and not grave misconduct.

Under Rule IV, Section 52(B)(2)[23] of the Uniform Rules on Administrative Cases in the Civil Service,[24] simple misconduct is a less grave offense punishable with suspension of one (1) month and one (1) day to six (6) months for the first offense, and dismissal from the service for the second offense. In Donton v. Loria,[25] where the respondent was found guilty of simple misconduct as a second offense, the penalty of suspension for six months without pay was imposed instead of dismissal, taking into account humanitarian reasons, length of service, and good faith. Quitorio pleads the same reasons.

In view of Quitorio's retirement, however, the penalty of suspension can no longer be imposed. Nonetheless, his resignation does not render the complaint against him moot, as resignation is not and should not be a convenient way or strategy to evade administrative liability when a court employee is facing administrative sanction.[26] In Leyrit v. Solas,[27] where the penalty of suspension for simple misconduct was no longer feasible due to therein respondent's compulsory retirement, the penalty of a fine equivalent to three months' salary was imposed, to be deducted from the retirement benefits.

Finding the recommendation of OCA to be appropriate under the circumstances, the Court finds that the penalty of a fine in the amount of P20,000.00 be imposed upon Quitorio, to be deducted from his retirement benefits.

Let it again be stressed that all court employees, being public servants in an office dispensing justice, must always act with a high degree of professionalism and responsibility. Their conduct must not only be characterized by propriety and decorum, but must also be in accordance with the law and court regulations. Court employees should be models of uprightness, fairness and honesty to maintain the people's respect and faith in the judiciary. They should avoid any act or conduct that would diminish public trust and confidence in the courts.[28]

WHEREFORE, Ernesto C. Quitorio, former Legal Researcher of Regional Trial Court, Branch 2, Borongan, Eastern Samar, is hereby found GUILTY of Simple Misconduct. He is ordered to pay a FINE in the amount of ?20,000.00 to be deducted from his retirement benefits. The Court further directs that respondent's retirement benefits be released to him, subject to the deduction of the fine imposed herein and the usual clearances.

[23] Section 52. Classification of Offenses. - Administrative offenses with corresponding penalties are classified into grave, less grave or light, depending on their gravity of depravity and effects on the government service.

x x x

B. The following are less grave offenses with the corresponding penalties: